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More news in immigration yesterday. There's an Atlantic article about it. The docket is Abrego Garcia v. Noem. The facts I'm recounting come from the declaration of Robert L. Cerna, Acting Field Office Director of the ICE Harlingen Field Office. This declaration is attached as Exhibit C to the government's response in opposition to the TRO (ECF #11).
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That last line is, frankly, insane to me given the circumstances. "Yea we knew at the time we deported the guy to El Salvador that it was illegal for us to do it, but it was in good faith!" What is the government's response to having illegally deported someone? Too bad! The government makes a few arguments but here I want to zoom in on a particular one: redressability. Ordinarily in order for a U.S. Federal court to have jurisdiction to hear a case the Plaintiff (that would be Abrego-Garcia, his wife, and his 5 year old son in this case) bears the burden of establishing that an order of the court would redress their claimed injury. This cannot be met here, according to the government, in part because they no longer have custody of Abrego-Garcia and so there is no order the Court can issue as to the United States Government that will reddress their injury. The appropriate entity to be enjoined is the government of El Salvador, over which a U.S. federal court obviously has no jurisdiction.
As best I can tell nothing in the redressability argument turns on any facts about his legal status in the United States. The argument is strictly about who presently has custody of the defendant in question. I do not see any reason why the government could not make an identical argument if an "administrative error" meant they deported a United States citizen.
Here's a small hint, U.S. Citizens are 'owed' certain 'duties' by 'their' (key word) Government. Non-citizens (once they've been determined to be such) are not.
Here's the actual Federal Law on the matter:
https://uscode.house.gov/view.xhtml?path=/prelim@title22/chapter23&edition=prelim
And the quote:
Bonus points:
Granted, what this looks like in practice is up for debate. What does "unjustly deprived" mean?
I'll reiterate the point I already made that I think the only way the Administration gets any heavy pushback on these actions is if they accidentally deport an actual U.S. citizen, who is then tangibly, physically harmed or killed while in custody, where-ever that is.
I actually agree that these measures are pretty draconian, but its hard to feel like "due process" is a major concern.
It'd be MUCH, MUCH easier to get Due Process if these folks, you know, followed the process and entered the country via the channels established to keep track of them and grant them permission to be here, so they can have a 'known' status.
"I intentionally skipped the procedural steps that would have established my right to stay in the country, but don't you DARE skip the procedural steps that would delay my inevitable removal from the country" is not a winning argument, I daresay.
I don't understand how either of those statutes defeat the redressability argument. What is the order a court could issue as to the government in the case of a citizen that it couldn't in the case of a non-citizen that would effect that individuals return? Quoting from the government's reply (citations omitted):
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What would be different about this analysis if Abrego Garcia were a citizen? Sure maybe the Plaintiffs could point to 1732, why would that matter? What is the order of the court that would redress the harm in the case of a citizen but not a non-citizen?
The procedural steps you denigrate are important, as here, to ensure that such a person is actually removeable!
Correct! Except I'm not 'denigrating' them, I'm pointing out that by the migrants skipping procedure, they've made it that much harder to employ due process protections.
If they didn't skip the steps when entering the country, it would be MUCH easier to determine their rights and status under the law! Government would have some record of their entry, they'd presumably be able to present some tangible evidence of their status, and they might actually have a case file open to process their claims to stay here.
So I'm not all that surprised that the Admin is shortcutting the "remove them from the country" part by taking advantage of the fact that they lack strong proof of their entitlement to remain here.
Because a U.S. Citizen would actually have a cognizable entitlement to make the government follow through on a 'duty' that they can implore the U.S. Government to actually act on, via the U.S. Court system.
To wit:
"I am a U.S. Citizen held in a Foreign Prison, there is no justification for holding me, do your job and take the steps to get me out."
Vs. a foreign national trying to use a U.S. Court to force a foreign goverment to do something. When said foreign national should presumably be asking their HOME COUNTRY for help. Why are they demanding the U.S. take action rather than their home country?
No, a U.S. Court has no jurisdiction over a foreign sovereign government, but they can order the U.S. to comply with its own laws and do the thing where it retrieves a U.S. citizen from Foreign custody. Which should be pretty easy when the U.S. is the one that is paying to keep them there.
As we're finding out, though, that's a precarious thing for a Court to do when the Executive does not want to follow their instructions and has some legal basis for ignoring/bypassing them.
I just don't think there's an argument for bypassing procedures for U.S. Citizens.
I don't understand how this applies to the instant case. It is the sworn testimony of the relevant ICE Field Director that they knew at the time they removed him that it was unlawful and they did it anyway. Due to an "administrative error." There is not any controversy about Abrego Garcia's status or whether the government could lawfully deport him to El Salvador.
If a court order commanding the United States government to withhold payment to El Salvador pending release of some individual is likely to lead to El Salvador releasing said individual back into US custody that seems like it defeats the redressability argument for citizens and non-citizens alike. The whole question is "is there any order a court could issue that would cause El Salvador to return the relevant individual?" If the answer is "yes" then the government loses on redressability.
I quibble with that reading of it. It isn't clear that the 'administrative error' was discovered before the guy was actually removed. The implication that he was removed on a 'good faith' basis says to me that whomever actually removed him thought the order was valid, and somebody else later noticed the mistake. I'm not taking them at their word, though.
But either way, the guy isn't required to be kept on U.S. soil, and I don't KNOW of any law (it might exist, but a google search and ChatGPT query didn't find it) that would require that the U.S. bring him back to U.S. soil.
Maybe they stop paying for his detention, he's released into El Salvador, and he can pay for a flight back?
I will reiterate: why doesn't he request assistance from his home country where he actually has citizenship?
Uh, not quite.
The Court has to have some statutory or common law authority on which to base an Order. Judges sometimes just issue orders to do things without such basis, and parties sometimes comply with it, but if the Court says "you are hereby directed to stop paying for the detention of this person on the basis of my own personal authority/interpretation of the law" then he's really overstepped.
This gets to the idea that Courts have very, VERY little power to intervene in foreign affairs matters, which are virtually unreviewable since they involve Plenary powers of the executive branch. Even SCOTUS doesn't claim authority to mess around with treaties entered by the Executive. If the President enters an agreement with a foreign government, Courts are usually not going to step in and interfere with that, for separation of powers reasons. Directly ordering the Executive to stop payments to a foreign government probably violates separation of powers.
(This is also why the use of the Alien Enemies Act is pretty likely to pass muster, although that relies on his military authority)
Ordering the Executive to carry out his duties under CHAPTER 23 §1732 and thus "to demand of that [foreign] government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen..." is just enforcing the legislature's intent and making the government follow its own rules.
So the order would have to be based on some legal entitlement to compel the U.S. government to do or stop doing something.
What statute exists that authorizes a non-citizen to compel the U.S. to take ANY steps whatsoever regarding their imprisonment in another country?
If we don't care about such basis, then the Judge might as well just unilaterally say "I declare that this person is a U.S. citizen for all pursuits and purposes and is thus entitled to be returned to the U.S. immediately."
But I suspect you'd agree that is beyond the pale?
Because it's the US who wronged him and have a responsibility to make it up to him.
Remember back when Trump issued a bunch of Travel Bans in his first term? Those were largely upheld by the Supreme Court, even though a LOT of immigrants/refugees/foreign nationals were 'wronged' by their implementation.
Because the interests of persons who are NOT citizens of the U.S. with respect to the U.S. Government are not nearly as sacrosanct.
He might or might not have a false arrest case.
If he thinks that the U.S. has wronged him, he should still probably go to his Home Country and ask them to represent his interests wrt the U.S.'s actions.
He doesn't really have the standing to compel the United States to do anything, and bringing suit against the Country would probably get his Green Card or refugee status revoked anyway.
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The government has no responsibility to right wrongs in general. There are some specific laws that apply to some specific contexts, for example Federal Tort Claims Act (which would not apply here), but as a general matter, government enjoys sovereign immunity, which means that unless some specific law applies, it is under no obligation to compensate you if it wrongs you.
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